M DAMODAR BHAT Vs. THIRD INCOME TAX OFFICER MANGALORE

JUDGEMENT

(1.) The principal prayer in this Writ Petition is for the quashing of an order or notice dated 23rd April, 1965 made and issued by the Third Income-tax Officer, Mangalore, produced as Exhibit VIII with the petition. The other prayers are neither incidental or ancillary to the said main relief.

(2.) The impugned notice was issued under sub-section (3) of Section 226 of the Income-Tax Act, 1961 and addressed to a third party called the Rajarajeshwari Motor Service from whom certain sums of money, it was believed, were due or payable to the petitioner. The petitioner was in arrears in respect of income-tax and penalty levied on him in respect of three or four assessment years. The total amount shown as due in the notice was Rs. 74,086.02 P. Although in the affidavit in support of the petition the petitioner has stated that something less was due, it is now conceded that the particulars set out in paragraph 6 of the counter-affidavit are correct. They are;

(3.) The argument in relation to items r and 5 is the same and may be disposed of briefly. In respect of both these sums, notices of demand were served on the petitioner on 16-4-1965 and the time limited thereby for payment of these sums was due to expire on May 21, 1965. The impugned notice, as already stated, was issued on 23-4-1965 nearly a month before the due date. Obviously that was not possible. Action under sub-section (3) of section 226 can be taken only in respect of such tax or penalty covered by these notices of demand were not due at all till May 21, 1965, a notice of attachment under sub-section (3) of section 226 was incapable of being issued. That the notice may be invalid to the extent to these sums is a matter of implied, if not, actual admission in paragraph 8 of the counter-affidavit, where it is stated that